☢ test - Í

prosecution for possession of amphetamine and methamphetamine, DUI, and weaving on the road, based on due process violation. State Crime Lab destroyed defendant’s blood sample, which was the only evidence that he possessed drugs or was under the influence while driving, despite trial court’s order that defendant be given opportunity for independent test. Crime Lab destroyed evidence based on policy of destroying samples after one year, but in this case had notice of testing order. Sample here had apparent exculpatory value because field test at time of arrest was negative for drugs. 1. Distinguishes Norley v. State, 170 Ga.App. 249, 252(4), 316 S.E.2d 808 (1984), where defendant failed to arrange for independent test within the one month allotted by trial court’s order, “and the crime lab destroyed the evidence three or four months later. On those facts, we held that the defendant waived his right to independent analysis by ‘not timely utilizing the court-ordered opportunity to conduct the testing.’” Defendant here sought access to sample within one month of trial court’s order, which set no deadline for the independent test. 2. “ The due process clause of the Fourteenth Amendment provides that no state shall ‘deprive any person of life, liberty, or property, without due process of law.’ U.S. Const., Amend. 14, Sec. 1. Under this clause, ‘criminal prosecutions must comport with prevailing notions of fundamental fairness. ’ (Emphasis supplied.) California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). The United States Supreme Court has long held that fundamental fairness ‘require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense,’ including the right of access to exculpatory evidence. Id.” In this case, Trombetta’s two-prong test is satisfied: “the State violates a defendant's right to due process when it destroys evidence that has ‘constitutional materiality’- i.e., evidence that (1) has ‘an exculpatory value that was apparent before the evidence was destroyed’ and (2) is ‘of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’” Exculpatory value was evident here given that the sample tested negative in the field; and defendant obviously “cannot replicate the destroyed sample.” Mere impeachment based on the prior negative field test isn’t the same: “the laboratory analysis of the evidence will carry great weight with the jury, and the jury will undoubtedly give such an analysis more deference than the initial field test procedures, which are inherently less precise and controlled,” quoting People v. Newberry , 166 Ill.2d 310, 209 Ill.Dec. 748, 652 N.E.2d 288, 292 (1995). Distinguishing Trombetta , a DUI prosecution where “the possibility that an independent test of the breath samples would have exculpated the defendants was ‘extremely low’ and because there was evidence that the defendants could have impeached the Intoxilyzer results by other means.” 3. Also distinguishing Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988): no due process violation in deterioration and destruction of semen sample the exculpatory value of which was unknown. “Rather, ‘this evidence was simply an avenue of investigation that might have led in any number of directions.’ Id. at 56, n. *, 109 S.Ct. 333. The evidence did not meet the standard announced in Trombetta because ‘no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ Id. at 57, 109 S.Ct. 333. Accordingly, the Court held that the State's failure to preserve evidence that is only ‘ potentially useful ’ (Emphasis supplied.) Id. at 58, 109 S.Ct. 333. does not violate due process unless the defendant can show that the State acted in bad faith. The bad faith requirement avoids ‘imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.’ Id. Finding of bad faith isn’t required where the exculpatory value of the evidence is known, per Trombetta . But in any event, “the State's intentional destruction of critical evidence without notice to a defendant in the face of a court order allowing the defendant access to that evidence can amount to bad faith. Compare Smith v. State, [270 Ga. 68, 71(6), 508 S.E.2d 145 (1998),] (no bad faith where substance found under defendant's fingernail was consumed during initial testing process and State's expert testified that she knew ‘that there was a possibility of consuming the sample, but that she could not tell what the probability was’); Lynott v. State, 198 Ga.App. 688, 690(4), 402 S.E.2d 747 (1991) (no bad faith where police destroyed tape recording of meeting with defendant because it was unintelligible); Walker v. State, 264 Ga. 676, 681(3), 449 S.E.2d 845 (1994) (‘careless, shoddy and unprofessional investigatory procedures’ which resulted in failure to preserve potentially relevant evidence did not amount to bad faith). In none of these cases was critical evidence destroyed after a court had ordered that the defendant have access to it.” Andrews and Eldidge dissent. X. DOCKETING Adams v. State, 282 Ga.App. 819, 640 S.E.2d 329 (November 27, 2006). The “Internal Operating Procedure” of the Appalachian Circuit “appoints the district attorney to act as the calendar clerk for criminal matters.” Defendant challenges this practice as “an unconstitutional delegation of judicial power [which] violates his right to due process of law.” Court of Appeals finds no merit in defendant’s contention. “While the separation of powers is fundamental to our constitutional form of government, it does not follow that a complete separation is desirable or was intended. In re Pending Cases, Augusta Judicial Circuit, 234 Ga. 264, 265, 215 S.E.2d 473 (1975). ‘The three departments of government are not kept wholly separate in the Georgia Constitution.... Our Constitution requires a district attorney to perform such other services as shall be required of him by law. Ga. Const., Art. VI, [Sec. VIII, Par. I(d)].’ (Punctuation omitted.) Id. at 266, 215 S.E.2d 473. Included among those other services is the requirement that the district attorney